David E. Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, Virginia, where he has been teaching since 1995. Professor Bernstein is an expert on the "Lochner era" of American constitutional jurisprudence. He is the author of Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Duke University Press 2001), and of Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press 2011).

Marc DeGirolami’s Liberty Forum essay discusses two contexts in which tradition might influence American law: common law and constitutional law. He suggests that tradition is still robust in the former, less so in the latter.
With regard to common law, I think that he’s right that custom underlies a good deal of the law of contracts, torts, property, and more. On the other hand, it strikes me that American common law as interpreted by the judiciary has been far less respectful of precedent (and therefore to some extent, of tradition) than has the common law in other countries.
Years ago, I had…

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Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with…

In the first paragraph of his celebrated 1881 book on the common law, Oliver Wendell Holmes, Jr. wrote: “The life of the law has not been logic; it has been experience.” Nor was that the first such expression in the annals of American jurisprudence. At the Philadelphia Convention of 1787, James Madison recorded John Dickinson’s…

This edition of Liberty Law Talk features a discussion with George Mason Law School Professor David Bernstein on his recently released book, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.

In the next Liberty Law Talk I discuss with David Bernstein of the George Mason University School of Law his excellent work of constitutional history Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform. The Lochner decision, of course, is a progressive teaching moment in the American legal academy. Virtually any constitutional law course will teach the case as an exercise in laissez-faire fundamentalism that refused to permit sensible labor regulations on behalf of industrial laborers. Fortunately, students are told, it is a constitutional moment that has been superceded by New Deal jurisprudence that upholds virtually any regulation of economic activity.
Professor…

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